Mar 24 2009 10:09 MAR-24-2089 1@t21 AGENCY HEALTH CARE ADMIN 856 921 4158 P. 16-28 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Case No. 2009000721 vs. MCINTOSH ELDER CARE, LLC a/b/a MCINTOSH MANOR, Respondent. f ADMINISTRATIVE COMPLAINT COMES NOW the Agency For Health Care Administration (the “Agency”) and files thig Administrative Complaint against McIntosh Elder Care, LLC d/b/a McIntosh Manor (“Respondent” or “Respondent Facility”), pursuant to §§ 120.569 and 120.57, Fla. Stat. (2008), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine in the amount of two thousand dollars ($2,000.00) and a survey fee of five hundred dollars ($500.00) pursuant to Sections 429.19 and 429.28, Florida Statutes (2008), or such other relief as this tribunal may determine, based upon two cited State Class IT deficiencies that were the gubject of a complaint investigation. JURISDICTION AND VENUE 1. The Agency has Jurisdiction pursuant to Sections 20.42, 120.60, and 429.07, and Chapter 408, Part II, Florida Mar 24 2009 10:09 MAR-24-2889 18:22 AGENCY HEALTH CARE ADMIN 856 921 @158 Statutes (2008). 2. Venue lies pursuant to Fla. Admin. Code R. 28-106,207. PARTIES 3. The Agency is the regulatory authority responsible for licensing assisted living facilities and enforcing all applicable state statutes and rules governing assisted living facilities, pursuant to Chapter 408, Part II, and Chapter 429, Part I, Florida Statutes, and Chapter 58A-5 Florida Administrative Code. 4. Respondent operates a 16-bed assisted living facility logated at 4612 McIntosh Read, Sarageta, Florida 34233, and is licensed as an assisted living facility, license number 11383. 5. At all times material to this complaint, Respondent was a licensed assisted living facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs 1 through 5, as i£ fully set forth in this count. 7. Saction 429.28, Florida Statutes (2007), provides: (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: P.iiv2a MAR-24-2889 Mar 24 2009 10:09 1@:22 AGENCY HEALTH CARE ADMIN 856 921 4158 (b) Be treated with congideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (3) (a) The agency shall conduct a survey to determine general compliance with facility standards and compliance with residents' rights as a prerequiaite to initial licensure or licensure renewal. (pb) In order to determine whether the facility is adequately protecting residents' rights, the biennial survey shall include private informal conversations with a sample of residents and consultation with the ombudsman council in the planning and service area in which the facility is located to discuss residents’ experiences within the facility. (e) The agency may conduct complaint investigations as warranted to investigate any allegations of noncompliance with requirements required under this part or rules adopted under this part. (4) The facility shall not hamper or prevent residents from exercising their rights age specified in this section. 8, From November 18, 2008, through December 4, 2008, the Agency conducted a complaint survey of Respondent Facility. 9. Based on documentation received, 6 telephone interviews conducted by the Agency surveyor, and interviews with Respondent Facility’s etaff£ and the Administrator, the Respondent facility failed to comply with the Resident's Bill of P1272 Mar 24 2009 10:09 MAR-24-2089 1622 AGENCY HEALTH CARE ADMIN 856 921 4158 P1328 Rights for 1 resident, “Resident #2”, of 4 residents sampled: 9,1, Documentation received from 11/18/08 through 12/4/08 and Agency surveyor telephone interviews with six (6) persons interested in contacting Resident #2 revealed that facility was telling telephone callers to Resident #2 that they could not speak with Resident #2, The callers were instructed to contact the person designated as Resident #2's Power of Attorney (“POA”) for permission talk on the telephone with Reaident #2. 9.2. Review of Resident #2's file revealed no documentation that the resident had been deemed incompetent, or that the POA was Resident #2’s legal guardian and the courts had removed all rights from the resident. The resident's file did contain documentation of the POA appointment. 9,3. In an interview with the Administrator on 12/4/08 at 2:30 p.m., the Administrator told the Agency surveyor that the facility had no documentation that Resident #2 was incompetent. The Administrator agreed that the only documentation regarding Resident #2 was the Power of Attorney. 9.4. The Agency surveyor’s interview with one of Respondent Facility’s staff members revealed that Respondent Facility’s staff members have been telling MAR-24-2889 Mar 24 2009 10:10 1@:22 AGENCY HEALTH CARE ADMIN 856 921 4158 visitors and callers that they must call Resident #2's POA and obtain the approval of the POA to visit or talk with Resident #2. 9.5. Agency surveyor interviews on 11/18/08 and 12/04/08 with Resident #2 revealed a well dressed, cleanly groomed resident wearing appropriate jewelry. The resident was very articulate and knowledgeable with a good sense of humor. During both interviews Resident #2 was clearly orientated to time and place and knew about Resident Rights. The Agency surveyor observed that Resident #2 understands that residents can visit and talk with whomever they choose, When asked what the resident would do if someone came to visit or called who wasn't welcome, Resident #2 stated, "I would tell them to go away or hang up on them". Resident #2 stated, “I'm a very happy social person and enjoy talking on the phone or in person with friends. . . . I like to do most anything.” The resident stated, “I play cards, bingo, watch TV, go to lunch or dinner, have hair and nails done and mostly enjoy the days at MeIntesh Manor especially since no cooking is involved.” Resident #2 stated that visitors were always welcome unless it was a day when the resident was out of sorts. Resident #2 expressed a willingness to have visitors and take phone calls. The resident mentioned step-children but had not P.14/28 Mar 24 2009 10:10 MAR-24-2089 18:25 AGENCY HEALTH CARE ADMIN 856 921 4158 P1528 seen them in some time. Resident #2 told the surveyor that the step-children were busy and didn't live in the area, but that Resident #2 would like see and talk with them. 9.6. Resident #2 is not aware that the facility haa been withholding visitors and telephone calls at the request of the POA. 10. The Agency determined that thia deficient practice of violating resident's rights was related to the personal care of the resident that directly threatened the health, safety, or security of the resident and cited Respondent for a State Class II deficiency pursuant to § 429.19(2)(b), Florida Statutes (2008). 11. The Agency provided Respondent with a mandatory correction date of January 4, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to §§ 429,.19(2) (b) and 429,19(3), Florida Statutes (2008), or such further relief as this tribunal deems just. COUNT II 12, The Agency re-alleges and incorporates paragraphs 1 through 5 and 4 and 9, as if fully get forth in this count. 13. Rule 58A-5,0182(6) (gq), Florida Administrative Code, requires: Mar 24 2009 10:10 MAR-24-2089 18:25 AGENCY HEALTH CARE ADMIN 856 921 4158 P. 1628 58A-5.0162 Resident Care Standards. An asaisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (g) The facility shall provide residents with convenient access to a telephone to facilitate the resident's right to unrestricted and private communication, pursuant to Section 429.28(1) (d), F.S. The facility shall not prohibit unidentified telephone calls to residents. For facilities with a licensed capacity of 17 or more residents in which residents do not have private telephones, there shall be, ata Minimum, an accessible telephone on each floor of each building where residents reside. 14. The Agency determined that this violation of Rule 58A- 5,0182(6)(g), Florida Administrative Code, was related to the personal care of the resident that directly threatened the health, safety, or security of the resident and cited Respondent for a State Class II deficiency pursuant to § 429,19(2) (b), Florida Statutes (2008). 15. The Agency provided Respondent with a mandatory correction date of January 4, 2009. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to §§ 429.19(2) (b) and 429,19(3), Florida Statutes (2008), or such further relief as this tribunal deems just. gouwr 1x2 16. The Agency re-alleges and incorporates Paragraphs one Mar 24 2009 10:11 MAR-24-2089 18:25 AGENCY HEALTH CARE ADMIN 856 921 4158 P1728 (1) through five (5) and Counts I and II of this complaint, as if fully set forth in this count. 17, Section 429,28(3)(c), Florida Statutes (2008), requires: (c) During any calendar year in which no survey is conducted, the agency shall conduct at least one monitoring visit of each facility cited in the previous year for a class I or class II violation, or more than three uncorrected class III violations. 18. Pursuant to § 429.19(7), Florida Statutes (2008); (7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fae or $ 500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under a. 429.28(3)(¢) to verify the correction of the violations. 19. A fee for a monitoring visit must be assessed, even though the survey will occur in the future, See, Agency for Health Care Administration v. Luz Home for the Elderly, Inc., a/b/a/ Luz Home for the Elderly, Case No. 02-263PH (Agency for Health Care Administration) . 20. The above Counts I and If result from an initial complaint investigation which found one or more Class II violations that were the subject of the complaint, or a monitoring visit will be conducted, 21. Respondent is therefore subject to a survey or monitoring fee of five hundred dollars ($500.00), pursuant to Mar 24 2009 10:11 MAR-24-2089 18:24 AGENCY HEALTH CARE ADMIN 856 921 4158 P. 18-28 Section 429.19(7), Florida Statutes (2008). WHEREFORE, the Agency intends to impoge an additional survey or monitoring fee of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(7), Florida Statutes (2008). Counsel for Petitioner Agency for Health Care Administration 595 Mirror Lake Drive, 330H St. Petersburg, Florida 33701 727,552,1535 (office) 727.552.1440 (fax) Respondent ig notified that it hag a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3,MS #3, Tallahassee, FL 32308;Telephone (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT THE FATLURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No.7007 0220 0001 1589 3874 to Thomas Ardini, Administrator, McIntosh Maner, 4612 MeIntosh Road, Sarasota, Plorida 34233, and Mar 24 2009 10:11 MAR-24-2089 18:24 AGENCY HEALTH CARE ADMIN 856 921 4158 P1928 by U.S, Certified Mail, Return Receipt No. 7007 0220 0001 1589 3681 to Robert W. Browning, Jr., Registered Agent for McIntosh Elder Care, LLC d/b/a M¢Intosh Manor, One North Tuttle Avenue, Sarasota, Florida 34237, on February 17) 7 2009, Copies furnished to; Thomas Ardini Administrator McIntosh Manor 4612 McIntosh Road, Sarasota, Florida 34233 (U.S, Certified Mail) James H. Harris, Esq. Agency for Health Care Admin, 525 Mirror Lake Drive, 330H St. Petersburg, FL 33701 (Interoffice) David Day/Harold Williams Field Office Manager 2295 Victoria Ave., Room 340 Ft. Myers, Florida 33901-39884 (U.S. Mail) Robert W. Browning, Jr., Registered Agent for McIntosh Elder Care, LLC d/b/a McIntosh Manor, One North Tuttle Avenue, Sarasota, Florida 34237 (U.S. Certified Mail) 10 MAR-24-2889 18:24 Mar 24 2009 10:11 AGENCY HEALTH CARE ADMIN 856 921 @158 P. 28-28 COWIE Roh ORES Cuan GAD Dk La ey SENDER: COMPLICA His SEOTION © Complete tema 1, — and 3. Aleo complete item 4 Hf Restricted Dativery |s desired, @ Print your name and addrasa on the reverse 80 that we can return the card to you. @ Attach this card to the beck of the mallplece, of on the front If space permite, D. le dollvery across different trom tenn 1? 11 Ya if YES, enter delivery address below: [No 4. Service Type CJ Certified Met = 0) Expres Mall Gi Registeed = CJ Returtt Roosipt for Merchanaliy OlnuedMat OC.0.0, oer 7007 aes 000} 1564 3474 sap O00 078 PS Form 3811, February 2004 Domestic Ratunn Receipt VOBEE-O2 Meg LOTION COMPLETA LE Ge CIgiaby One ec IVE RY SENDER: COMPLE BETIS @ Complete itema 1, .nd 3. Also complete A. Signature . Ttem 4 if Restricted Dallvery Ie desired, x ay 0 Agant © Print your name and address on the reverse ay it, © Adcresse 40 that we can ratum the card to you, t Ronetvedd ect Narre! G, Date of Dative @ Attach this card to the back of the mallplace, AY’, or on the front if apace permite. Lj D. Ip calvary adress diforont from tan 1? D Yes . 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Docket for Case No: 09-001547